Home About Action News December 2002 Supreme Court (Part 1)

December 2002 ACTION NEWS | VOL. XXI No. 3

NOTE: Due to its length and number of pictures, this article is split into two parts.

Part 1 Part 2

U.S. Supreme Court Hears Scheidler Appeal

Scheidler with reporters outside Supreme Court

Scheidler takes reporters' questions on the Court steps after the hearing [Photo by Martin Lueders]

"All rise! The Honorable the Associate Justices of the Supreme Court of the United States!" The eight Associate Justices file into the hushed courtroom and take their seats before a curtain of red velvet as the Marshal intones "Oyez!" three times, meaning "Hear ye!" A scene above the Justices depicts Moses presenting the Ten Commandments. "All persons having business before the Honorable the Supreme Court of the United States are admonished to draw near and give their attention, for the Court is now sitting!" continues the Marshal. "God save the United States and this Honorable Court!"

Lead attorney Thomas Brejcha with assistant attorney Debby Fischer [Photo by Martin Lueders]

With the clap of a gavel, the latest and possibly final chapter of the sixteen-year-old NOW v. Scheidler case begins. Defendants Joe Scheidler, Tim Murphy and Andrew Scholberg take their seats as the Court prepares to hear the appeal of their 1998 Federal District Court conviction on racketeering charges.

Court Hears Oral Arguments

On Wednesday, December 4, the eight Associate Justices of the Supreme Court heard oral arguments in the NOW v. Scheidler case (Chief Justice William Rehnquist was out with an injury). The Court is considering two issues in this appeal: (1) whether peacefully blocking an abortion clinic entrance or delaying a woman's access to a clinic constitutes the federal crime of "extortion," and (2) whether private parties like NOW and the clinics can sue under RICO for the devastating penalty of a federal injunction against the "racketeers."

Prior to the Supreme Court appearance, lead attorney Tom Brejcha of the Thomas More Society Pro-Life Law Center selected Washington attorney Roy Englert to present the oral arguments, considering Englert's dozen victories before the High Court. Building on his partner Alan Untereiner's extensive work on the case—which was key to convincing the High Court to hear the appeal—Englert presented strong arguments against the federal injunction and extortion charges.

Scheidlers leave court with son Joe (right) and Ann's brother Pat (left)
[Photo by Martin Lueders]

Solicitor General Ted Olson, of Gore v. Bush fame, represented the federal government, and argued that extortion charges could apply to abortion clinic blockades, but agreed with Englert that the injunction should be thrown out. NOW attorney Fay Clayton attempted to defend both elements of the lower court's judgment.

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Roy Englert for the Defense

It was clear from the start that the Justices had thoroughly prepared for the hearing and knew precisely what issues were at stake. Only minutes into his presentation on why the extortion charges should be overturned, Englert was interrupted by questions from Justices John Paul Stevens and Antonin Scalia on why the abortion protesters did not "obtain" the property of clinic owners by temporarily stopping abortions. Justices Anthony Kennedy and Steven Breyer seemed concerned about the impact such a notion of "obtaining" property would have on nonviolent protest.

Englert went on to present the case against NOW's injunction, showing that Congress never intended private parties to have access to such a powerful weapon, and that the language of the RICO statute does not support it.

Olson and the First Amendment

The mainstream media widely reported that Solicitor General Ted Olson argued against Scheidler and the other defendants, but that is not entirely accurate. Rather, Olson defended only the extortion charges, and only as they applied to the clinic owners, whose business was disrupted by the abortion protests.

Justice Kennedy: "There's always a First Amendment implication in a protest case."

Early in his remarks Olson stated that the First Amendment is not an issue in this case. Justice Kennedy interrupted him. "There's always a First Amendment implication in a protest case," he said. "There is a First Amendment issue in the case because of the broad definition you're proposing."

Justice Scalia suggested that the broad definition of "obtaining property" in the lower court judgment would constantly require the Court "to sort out whether that definition doesn't sail too close to the wind with respect to First Amendment rights."

Kennedy's and Scalia's comments were encouraging to the defense. In accepting Scheidler's appeal, the Court specifically refused to directly consider the First Amendment issue. Nevertheless, Untereiner was certain the First Amendment would have to come in anyway—clearly he was right.

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